United States v. Nelson
| Decision Date | 30 June 1944 |
| Docket Number | No. 410-412.,410-412. |
| Citation | 143 F.2d 584 |
| Parties | UNITED STATES v. NELSON. SAME v. GIBBS. SAME v. SCHWARTZ. |
| Court | U.S. Court of Appeals — Second Circuit |
Jay T. Barnsdall, Jr., of Buffalo, N. Y., for appellants.
George L. Grobe, U. S. Atty., of Buffalo, N. Y. (Austin J. Donovan, Asst. U. S. Atty., of Rochester, N. Y., and Eugene J. Donnelly, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for appellee.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
These three appeals were argued together and may be disposed of in a single opinion. Each appellant was convicted under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 311, of wilfully failing to perform a duty required of him under the Act and the rules and regulations promulgated pursuant thereto. With respect to Nelson and Schwartz the specific charge was failure to report for final type physical examination; in the case of Gibbs it was failure to report for induction for work of national importance.
The facts are very simple. Each appellant duly registered with his local board. From the classification given him by the local board he appealed to an appeal board which reclassified him in 4 E as a conscientious objector. He claims to have been entitled to 4 D classification as a minister of religion. Thereafter a notice was mailed to the registrant directing him to report at a stated time and place for physical examination in the case of Nelson and of Schwartz, and for induction in the case of Gibbs. Each registrant failed to obey the order, was reported as a delinquent, and subsequently was brought to trial upon the indictment under which he was convicted. Nelson received a penitentiary sentence of 3½ years; Gibbs and Schwartz one of three years each.
Relying upon a statement in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, 147 A.L.R. 674, to the effect that "no official, high or petty, can prescribe what shall be orthodox in * * * religion, or other matters of opinion," the appellants argue that no board in the Selective Service System had authority to pass upon the appellants' claim to be ministers of religion; and consequently the orders directing them to report for examination or induction were void. But the case is governed by Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, which holds that the correctness of a board's classification cannot be questioned in a criminal prosecution for...
To continue reading
Request your trial
-
Estep v. United States Smith v. Same
...Biggs and Leahy, in the court below in 150 F.2d 768. 2 See, also, United States v Kauten, 2 Cir., 1943, 133 F.2d 703; United States v. Nelson, 2 Cir., 1944, 143 F.2d 584; United States v. Grieme, 3 Cir., 1942, 128 F.2d 811; United States v. Bowles, 3 Cir., 1942, 131 F.2d 818, affirmed on ot......
-
United States v. Flakowicz, 172-176.
...Jehovah's Witnesses alone with respect to this issue; among fifteen or more cases which might be cited, we refer to United States v. Nelson, 2 Cir., 143 F.2d 584; Harris v. Ross, 5 Cir., 146 F.2d 355; and United States ex rel. Trainin v. Cain, 2 Cir., 144 F.2d 944, certiorari denied Trainin......
-
United States v. Kennedy, 52
...150 F.2d 768. 11 Ex parte Craig, 2 Cir., 282 F. 138, 141, 155-159. 12 306 U.S. 19, 59 S.Ct. 442, 446, 83 L. Ed. 455. 13 United States v. Nelson, 2 Cir., 143 F.2d 584. 14 2 Cir., 146 F.2d 15 157 F.2d 165. 16 5 Cir., 153 F.2d 190. 17 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. 18 327 U.S. 114, ......